Habeas Corpus
Melvin Gresham
30 March 2013
American National Government

A writ of Habeas Corpus as the book definition has it is that of a writ (legal action) that requires a person under arrest to be brought to a judge or into a court for a hearing to basically determine they are guilty of alleged crimes or not. It is a right given to every American so they can know that they are being treated fairly and that they are being given a fair trial. I am going to discuss in my paper how habeas corpus has been taken in some cases and how I can both agree and disagree with those reasons.

Habeas corpus emerged in the middle ages in England as an instrument of royal prerogative. The King of England wanted to know why any of his subjects were being detained and if they were being detained for lawful reasons or not. It was a further attempt at formalizing and streamlining the legal process that emerged as the English monarchy was trying to wrest power away from feudal lords and barons. In 1679, the right was secured in the Habeas Corpus Act of 1679, which expanded it after several previous court cases that lessened its effect and availability (Halliday, 2010). The tradition as codified by this law travelled over the Atlantic and to the New World, where it became an integral part of American legal tradition as well. It was preserved both in Article One of the United States Constitution and in the Judiciary Act of 1789 (Wert, 2011).

Habeas Corpus has been around for hundreds of years and is something that is not easily removed from someone’s rights unless it is necessarily so. There have however been two very popular suspensions of habeas corpus by United States Presidents. Abraham Lincoln’s suspension of the habeas corpus in 1861 and George Bush signed a law on October 17, 2006 suspending the right of habeas corpus to persons determined by the United States to be an enemy combatant in the global war on terrorism.

By the start of the American Revolutionary War, the Writ of Habeas Corpus was solidified into the American Constitution. The American Constitution at Article I, Section 9 states that: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it.” It is important to note that the framers of the Constitution for the United States of America choose to include in the body of the Constitution the Writ of Habeas Corpus while other important individual rights, arguably as an afterthought, were included in the first ten amendments which were popularly called the Bill of Rights. This sheds light on the importance of the Writ of Habeas Corpus as viewed by the framers of the American Constitution at the time it was established.

Today the Writ of Habeas Corpus is used in many different ways. It applies to post conviction relief in criminal matters even where the judgment of judge and jury is final. It applies to those who are in police custody but who are not charged with a crime. It applies to those who are awaiting trial but who have not been able to make an excessive bail. It applies to death row prisoners who challenge their death sentence. It applies to prisoners who remain in custody after the expiration of their lawful sentence. Additionally, habeas corpus applies to both adults and children who are restrained of their liberty in some meaningful manner but who are not in the actual custody of police or other public authority.

In my view, I believe that habeas corpus has almost been taken advantage of from what it was originally made out to be. Writ of Habeas Corpus was just originally meant to protect those people until proven “guilty” or “not guilty”. It wasn’t meant to protect people above and beyond that call. Some people can understand this and take advantage of this and others cannot but I will not get into that quit yet.

The terrorist attacks of September 2001 created new complications for the separation of powers within the war powers sphere. After September 11, the United States Congress passed the Authorization for Use of Military Force against Terrorists (AUMF). While the AUMF did not officially declare war, the legislation provided the President with more authority upon which to exercise his constitutional powers as Commander in Chief. As the U.S. Supreme Court explained in Youngstown Sheet and Tube Co. vs. Sawyer, Presidential Commander in Chief powers increase when Congressional intent supports the actions taken by the Commander in Chief. The AUMF served as that expression of Congressional intent. President George W. Bush, his cabinet, and his military advisers determined that the al Qaeda terrorist network had financed and perpetrated the September 11 attacks. They also determined that the Taliban, a group in control of the Afghanistan government, had permitted al Qaeda to operate and train its members within Afghanistan's borders. Thus, the President used military force to invade the country in an effort to destroy the al Qaeda network and topple the Taliban. During the conflict, the U.S. military rounded up alleged members of the Taliban and others fighting against U.S. forces. The military then placed these "detainees" at a U.S. base located at Guantanamo Bay, Cuba at the direction of the Bush Administration, which believed that the base fell outside the jurisdiction of U.S. federal courts. Consequently, the Bush Administration and military believed that the detainees could not avail themselves of habeas corpus and certain other protections guaranteed by the U.S. Constitution. The military held many of these prisoners at the Guantanamo base for years without bringing formal charges against them. Prisoners obtained legal counsel in the U.S. to file habeas corpus petitions in U.S. federal court. A series of cases then came before the U.S. Supreme Court dealing with the constitutionality of the prisoners' detentions at Guantanamo.

When it comes to habeas corpus and the war on terror, honestly in my eyes, the two terms don’t go together. I don’t believe in habeas corpus for terrorist. I am an American Military soldier and have been deployed twice. I have seen the Iraqi’s and the Afghanistan people up close and personal. From what I saw, they wouldn’t offer us a fair trial if the shoe was on the other foot so to say. I am the type of person who is all for fairness and innocent until proven guilty, but after witnessing with my own two eyes how much these people hate the American culture so much, I have no sympathy for them. They have made their own beds and now they must lie in it. However the constitution doesn’t agree with me, on June 12, 2008, Justice Kennedy delivered the opinion for the 5-4 majority, holding that the prisoners had a right to the habeas corpus under the United States Constitution and that the Military Commissions Act of 2006 was an unconstitutional suspension of that right. The Court applied the Insular Cases, by the fact that the United States, by virtue of its complete jurisdiction and control, maintains "de facto" sovereignty over this territory, while Cuba retained ultimate sovereignty over the territory, to hold that the aliens detained as enemy combatants on that territory were entitled to the writ of habeas corpus protected in Article I, Section 9 of the U.S. Constitution. The lower court had expressly indicated that no constitutional rights (not merely the right to habeas corpus) extend to the Guantanamo detainees, rejecting petitioners' arguments, but the Supreme Court held that fundamental rights afforded by the Constitution extend to the Guantanamo detainees as well.

I know that many people will disagree with me about that you can’t take that right away from someone terrorist or not because that person could be an innocent person and has nothing to do with any of this. Yes that could be true, but then I would tell them that they have their people to blame for what is happening to them and not me.

In conclusion a federal habeas corpus is a mechanism where federal court may analysis the validity of an individual confinement. This tool is being mainly invoked after confinement and exhaustion of the ordinary means of appeal. Habeas corpus can be explained as the last resort of rogues and the last ray of hope of the naive. It is an obscure intertwine of statute and case law whose reach has streamed and receded over time Under current provisions , relief to state prisoners is only obtainable if the state courts have declined or ignored their legitimate claims Further , there are strict time limits with in which they have to approach the federal courts for relief . A petitioner may succeed if he employs a novel interpretation of law to prove his innocence. It is to be noted that the Supreme Court has observed that Congress is having adequate authority to limit, but not to snuff out or access to the writ. Thus, Habeas corpus plays a pivotal role in safeguarding U .S Citizens against illegal confinement and is still regarded as a safeguard measure against arbitrary custody or imprisonment.

References http://en.wikipedia.org/wiki/Habeas_corpus http://search.proquest.com.proxy-library.ashford.edu/history/docview/422159534/13D236F5B264AB54890/4?accountid=32521 http://search.proquest.com.proxy-library.ashford.edu/history/docview/422159534/13D23DE634423D9E79B/4?accountid=32521 http://search.proquest.com.proxy-library.ashford.edu/history/docview/422272051/13D23DE634423D9E79B/8?accountid=32521
http://www.youtube.com/watch?v=N5II0jrWitE